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Whose driving data is it? Ola e-scooter accident in Assam triggers privacy controversy

When Ola Electric released a statement on the accident, it detailed how that particular vehicle was being driven. That has set off a firestorm.

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On 26 March, a young man in Guwahati, Assam met with a rather serious accident while riding his Ola S1 Pro electric scooter. This accident left him with compound fractures on both his arms. His father, Balwant Singh, also the owner of the scooter, put out an anguished post on social media blaming Ola for selling him a faulty product and poor customer service. This is not the first customer complaint about alleged deficient service by Ola or any multitude of auto manufacturers. What was unique was the way Ola Electric reacted to this incident.

On 22 April, Ola Electric released a statement on Twitter that detailed how that particular vehicle was being driven. It claimed that the scooter was being driven extremely rashly, and whoever was riding it had engaged Ola’s ‘Hyper Mode’ and touched 115 kilometres per hour and then, just before the accident, had engaged full brakes, which in the case of the Ola S1 are not just the disc brakes on the front and rear wheels but also the regenerative brake that regenerates energy from the brakes. This led to the scooter going from 80 kilometres per hour to a stop in just three seconds.

Also read: Why electric scooters are catching fire & should this really make you worry about EVs

Whose data is it anyway

Before we get into the data aspect, such a braking action is extreme and according to Bertrand D’Souza, editor, Overdrive magazine, a motoring monthly, quite possible on the Ola S1 as it is on high-performance motorcycles. “But if you are not prepared for such a violent stopping motion, you could easily be toppled over the handlebars and get injured.” This is what most who saw the data say happened.

But the release of the data set off a firestorm involving data privacy advocacy groups, technologists and the automotive industry. The fact is that most modern vehicles, including virtually every car sold in India, other than possibly the cheapest, have some sort of telematics solution. Telematics means that data, mainly about driving characteristics and location, are transferred from the vehicle to the automobile manufacturer and, if the customer so wishes, back to their smartphone.

Such solutions allow customers to keep track of where their vehicles are and how they are being driven. For example, if you let teenagers at home take your car, you could set a geographic boundary of 10 kilometres beyond which if the vehicle moves you get an alert. Similarly for speed, in case the vehicle exceeds a set speed, you get an alert. You can also keep tabs on your vehicle’s whereabouts, useful if you send a driver to pick up your children from school.

But implicit in all this is the fact that automobile manufacturers realise that the data they get belongs to the customer. The head of engineering at a large automobile manufacturer says that the data his team gets is completely anonymised. “I have no idea that you drive a certain way, but I can see how my fleet was driven on average. When people were going fast, when people were shifting gears. And based on those driving analytics, I can adjust my gear ratios, my engine performance in future models.” However, he does admit that somewhere in the system, stored on data servers is identifiable data for a particular Vehicle Identification Number (VIN). “If the customer wants his or her data, they can ask for it. If the authorities get a court order for the data, it is like getting a court order to access an email account,” this person admits.

Also read: India’s EV battery race is led by newbie scooter maker that gets more state support than RIL

Right to privacy or right to defend?

Nikhil Mehra, a Supreme Court advocate, is rather curt in his assessment of the matter, “I do not know the details of Ola’s privacy policy but releasing such information not only goes against the Puttaswamy judgment that upholds the right to privacy but also against the fundamentals of Article 20, sub-clause 3 of the Constitution of India that says that no person can be made to bear witness against themselves. This driving data is doing just that, and worse, you have made out the rider to be reckless.” Balwant Singh, the father of the young man who met with the accident, has filed an affidavit against Ola. Company officials did not wish to put their points on record.

However, Shraddha Deshmukh, another lawyer who has gone through Ola’s privacy policy with a fine comb, argues a couple of things. ”Ola gives all their customers a clear opt-out in the data agreement. Once you have agreed to the terms and conditions of the agreement, you are bound by it and part of those terms and conditions includes Ola’s legitimate interests to counter defamatory information that could impact sales. Once you make certain information public, as this gentleman has done having gone to social media and making accusations against Ola, I believe the company is correct in enforcing their rights.” Basically, if Ola was defamed by a wrongful account thanks to the fanciful story told by a teenager on a late-night jaunt, should Ola not have the opportunity to defend themselves on the same medium? At the same time, Ola Electric has noted that all their data is stored in India and that it is used to make their products better.

Both Mehra and Deshmukh, however, agree on one point — either this case or a future case with similar dimensions will be decided in court, most likely the Supreme Court, and the Puttaswamy judgment will come back in a certain way. In fact, Justice D.Y. Chandrachud, in leading opinion on that judgment, had commented about big data and how it could be used by the State and non-State actors.

It is important to note that when any vehicle owner uses connected smartphone apps such as Apple CarPlay or Android Auto, it isn’t just Maruti or Hyundai who get data but also Cupertino and Mountain View. And fans of Ola and its critics are also going at each other on social media. Ola’s fans say that the company is right to defend itself and its detractors allege that Ola is ‘fudging’ the data.

But one thing is certain, your car or bike can snitch on you today and while it might not be a problem now, this issue is only going to get more tricky. One hopes that the Data Privacy Act in Parliament recognises this as does the justice system, one way or another.

@kushanmitra is an automotive journalist based in New Delhi. Views are personal.

(Edited by Prashant)

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